The Elephant in the Room: How COVID-19's Financial Impact Further Threatens Title IX Compliance
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International Journal of Sport Communication, 2020, 13, 399–407
https://doi.org/10.1123/ijsc.2020-0242
© 2020 Human Kinetics, Inc. SCHOLARLY COMMENTARY
The Elephant in the Room:
How COVID-19’s Financial Impact
Further Threatens Title IX Compliance
Karen L. Hartman
Idaho State University
This scholarly commentary addresses COVID-19’s financial impact by examining
how current and proposed National Collegiate Athletic Association bylaw waivers
could negatively affect women’s collegiate athletics and Title IX compliance. These
potential bylaw changes come after years of misinformation, a lack of education,
and minimal understanding of the law. In the chaos of COVID-19’s impact on
American society and athletic programs, Title IX has become the elephant in the
room. The essay concludes with three recommendations that could help athletic
departments alleviate Title IX compliance issues when enacting the bylaw waivers.
Keywords: bylaw waivers, compliance, NCAA, women athletes
The economic fallout from COVID-19 on U.S. collegiate athletic departments
is a top administrative concern. So much so that on April 9, commissioners from
five National Collegiate Athletic Association (NCAA) Division I conferences sent
a letter to Mark Emmert, the association’s president, to request leniency from
several NCAA regulations. The commissioners noted a need for flexibility due to
potential COVID-19 financial challenges, such as decreased state appropriation
funding, lower philanthropic giving, and reduced enrollment. One week later,
22 schools belonging to the Collegiate Commissioners Association also submitted
a letter seeking regulatory relief. By the end of April, the majority of Division I
conferences requested consideration for waivers and relaxed regulations (Hosick,
2020b). These requests suggest the depth of financial strain many Division I
programs feel as well as their view that relaxing regulations is a way to survive.
Conferences and athletic departments are desperate to keep revenue coming
in, limit costs, and simply survive. The COVID-19 financial challenges, however,
follow years of financial strain. While athletics are perceived to bring in millions of
dollars, any school making a profit is in the minority (Burnsed, 2015). For example,
in 2014, only 24 Football Bowl Subdivision (FBS) programs profited. Although
many football and men’s basketball programs produce revenue, the profits are
nonexistent for the majority of schools. In addition, in the first few months
The author (hartkar2@isu.edu) is with the Dept. of Communication, Media, & Persuasion, Idaho State
University, Pocatello, ID, USA.
399
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following the COVID-19 outbreak, schools have already cut sports as a cost-saving
measure. By May 26, 20 men’s and women’s Division I programs had been
eliminated (Beard, 2020). Therefore, providing waivers and reducing regulations
for NCAA members has been a popular idea among Division I programs to, at
least, find some way to survive. But, if this is their best idea, who benefits and who
loses? For thousands of women athletes, they could lose.
This scholarly commentary addresses COVID-19’s financial impact by exam-
ining how current and proposed NCAA bylaw waivers could negatively affect
women’s collegiate athletics and Title IX compliance. In the chaos of COVID-19’s
impact on American society and athletic programs, Title IX has become the elephant
in the room. It is imperative that commissioners, coaches, and athletic directors as
well as communication and sport scholars recognize how certain bylaw waivers
could have negative consequences. These potential changes come after years of
misinformation, a lack of education, and minimal understanding of the law. Although
coaches desire more meaningful discussions about Title IX, most do not understand
the law at a basic level. There is scant research on which university athletics
departments have had formal education on Title IX’s enforcement, and while all
universities can have a Title IX compliance officer, not all do (Staurowsky & Weight,
2011). More should be done to educate university officials and scholars about Title
IX, and this essay hopes to do so during a pivotal time for collegiate athletics.
Title IX and Media Coverage
Title IX, part of the Education Amendments Act of 1972, prevents sex discrimi-
nation for institutions receiving federal funding. Within college athletics, univer-
sities have three ways to comply. Known as the three-prong test, universities
can choose any one prong to demonstrate compliance with the law: substantial
proportionality, demonstrating a history of expanding opportunities for the under-
represented sex, or fully meeting the demonstrated interest and abilities of the
underrepresented sex. Since the law’s implementation, participation rates for both
men and women from the high school to the collegiate level have increased, but
compliance is still dramatically off. In 2017, an estimated 201 Division I programs
and 815 out of 1,085 institutions at all Division I, II, and III levels were out of
compliance with Title IX (Jenkins, 2019).
The latest bylaw waiver requests have not appeared to ring any alarm bells in
terms of Title IX. A search conducted on Nexis Uni using the terms “NCAA” and
“waiver” with dates spanning from April 9 to May 13 produced 671 articles. Once
duplicates and irrelevant articles were removed (e.g., articles on the Nigerian Civil
Aviation Act), 265 relevant articles remained. The dates were chosen as April 9
was when the letter from the five commissioners was written and the time span
provided 35 days to review articles responding to the waiver request. Furthermore,
a drop in the number of news articles on NCAA waivers was seen by May 13,
suggesting that the story had reached the end of its relevant news cycle. For
example, from May 11 to May 13, the number of relevant articles dropped
to six. Conducting a similar search and adding the term “Title IX” provided
14 articles. Out of these, four were duplicates, resulting in 10 relevant and unique
articles. A content analysis of each of the 10 articles found that they referenced
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Title IX in relation to sport sponsorship (six), tuition waivers (one), spring sport
eligibility (one), or a Title IX investigation against a male athlete (two). Therefore,
only six out of 265 articles referenced any impact on Title IX, and zero discussed
Title IX in terms of the bylaw waivers except for sport sponsorship.
Similar results were found when looking at the top three most trafficked
sports websites: Yahoo! Sports, ESPN, and Bleacher Report (Top 15, 2020). Using
similar search terms as used on Nexis Uni across the same dates yielded five
Yahoo! Sports articles, 10 ESPN articles, and two Bleacher Report articles.
Content analysis revealed that zero articles discussed Title IX in reference to
the bylaw waivers. While media outlets have reported on the waivers and a few
have paid attention to the problems associated with sports sponsorship, none have
looked deeper at the other bylaw waivers requested by Division I institutions to see
what potential problems lurk beneath.
NCAA Response and Requested Bylaw Waivers
The NCAA formally responded to the escalating COVID-19 pandemic in early
March by forming a coronavirus advisory panel. The panel and NCAA repre-
sentatives reacted as the situation progressed, initially by allowing contests to
continue as the Centers for Disease Control had not yet advised against them and
then by limiting attendance. By March 12, however, the NCAA canceled the
remaining winter and spring championships. Following the cancellation, the
NCAA adjusted rules to help universities confront the pandemic’s fallout, such
as approving temporary blanket waivers for sport sponsorship and scheduling
requirements, extending eligibility for spring-sport student athletes, and adjusting
recruiting regulations, among others.
By April 10, commissioners had submitted their letter expressing their anxiety
and formally requesting several bylaw waivers for a period of up to 4 years. Table 1
Table 1 NCAA Bylaw Waiver Requests
20.9.9.3 Football attendance requirements (FBS)
20.9.9.1 Sports sponsorship (FBS)
20.9.9.2 Football scheduling requirements (FBS)
20.9.9.4 Additional financial aid requirements (FBS)
17.1.7.2.2.5 Summer athletic activities (for basketball and football [FBS/FCS])
20.9.6.3 Minimum contests and participants requirements for sports sponsorship
20.9.7.1 Scheduling requirement—Sports other than football, basketball, cross-
country, men’s swimming and diving, indoor and outdoor track and field,
and wrestling
20.9.7.2 Scheduling requirement—Cross-country, men’s swimming and diving,
indoor and outdoor track and field, and wrestling
20.9.8.2 One third of contests in home arena (basketball)
31.3.4.1 Requirements—Division championship
Note. FBS = Football Bowl Subdivision; FCS = Football Championship Subdivision; NCAA =
National Collegiate Athletic Association.
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outlines the requests (as cited in Thamel, 2020). Two weeks later, the Division I
Council Coordination Committee decided it would not allow a blanket legislative
waiver for the sport sponsorship requirement for Academic Year 2020–2021.
Individual schools, however, could still request consideration (Hosick, 2020a).
Then on May 6, the committee approved blanket waivers for three items: basketball
and football summer athletic participation without enrollment in summer school
(Bylaw 17.1.7.2.2.5), requirements for minimum financial aid (Bylaw 20.9.9.4),
and reclassifying schools to count as Division I opponents. These waivers were
made specifically in response to the requests made by the Division I conferences
(Hosick, 2020c).
Out of the numerous changes and adjustments the NCAA has made, there are
four bylaw waiver requests still positioned to have the most impact on women
athletes: financial aid minimums (Bylaw 20.9.9.4), participant requirements
(Bylaw 20.9.6.3), and scheduling requirements (Bylaws 20.9.7.1 and 20.9.7.2).
Because the DI Council denied any blanket waiver for sport sponsorship in 2021,
which represented the largest and most significant threat to Title IX compliance, it
will not be discussed. In addition, by the end of May it appeared that more men’s
teams were being cut than women’s, 16 and four, respectively, suggesting that
sport sponsorship was not a large-scale threat (Beard, 2020). There are, however,
still four bylaw waivers that can threaten a university's ability for Title IX
compliance.
Bylaw 20.9.9.4
Bylaw 20.9.9.4, titled Additional Financial Aid Requirements, received a 1-year
blanket waiver on May 6, making it effective from spring 2020 to spring 2021. The
bylaw addresses financial aid and identifies two items FBS schools need to satisfy to
provide scholarships to student athletes. First, schools need to award a minimum of
90% of football grants-in-aid over a 2-year period. Second, schools must annually
offer 200 athletic grants-in-aid or award at least $4 million to student athletes
(Division I Manual, 2019). Grant-in-aid, or athletic financial aid, comes in the form
of scholarships, and the NCAA dictates the maximum number of scholarships each
team receives. Within that allocation, there are two ways that scholarships can be
awarded—either through head count or equivalency. Head count sports include
men’s basketball (13 scholarships) and football (85). Women’s head count sports
include basketball (15 scholarships), gymnastics (12), tennis (eight), and volleyball
(12). For these sports, there is a required maximum number of scholarships that can
be awarded, and each athlete receiving financial aid counts as one full scholarship.
The remaining NCAA sports are deemed equivalency sports, and scholarships can
be divided among any number of student athletes. For example, ice hockey has a
maximum of 18 scholarships, but, theoretically, 36 student athletes could receive
half of a scholarship. There is discretion with how financial aid can be awarded at the
institutional level, and there are no NCAA bylaws that mandate aid needs to be
awarded at a gender-proportional rate. However, Title IX requires that female and
male student athletes receive athletic scholarship dollars proportional to their
participation within 1% (Dear Colleague Letter, 1998).
This particular bylaw waiver extension is problematic because it threatens to
continue, if not augment, a history of institutions underfunding women athletes and
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violating Title IX. In 1997, the National Women’s Law Center alleged Title IX
violations against 25 schools. Their complaint, filed with the Office of Civil Rights,
argued that these schools provided a smaller proportion of financial aid to women
athletes (George, 1999). In 2014, 75% of Power 5 Conference schools (Atlantic
Coast, Big Ten, Big 12, Pac-12, and Southeastern Conference) were not in numeric
compliance with their financial aid (Kantor, 2016), mirroring a 75% noncompliance
rate among all Division I FBS schools (Osborne, 2017). At the Football Champion-
ship Subdivision (FCS), only 20% of the 114 institutions were in compliance with
scholarship regulations. Scholarship discrepancies at both the FBS and FCS levels
were largely due to overfunding male student athletes and providing disproportionate
scholarship funding for women athletes (Osborne, 2017).
If schools were unable to uphold this bylaw even during times when COVID-
19 did not present such a financial challenge, what are they to do now? With the
bylaw being waived, there is more flexibility to maintain scholarship dispropor-
tionality or even increase it. And with revenue as important as ever, it might make
financial sense to some to maintain football and men’s basketball scholarships, the
most consistent revenue earners, above other teams’ considerations. If the financial
pot is low and there is only so much money to go around, women athletes will
continue to be left out. The flexibility that this relaxed regulation provides can
directly impact what women receive and what they do not. Research (e.g., George,
1999; Kantor, 2016; Osborne, 2017) suggests that women, historically, have been
overlooked, and without proper oversight, this bylaw waiver could help further that
imbalance and noncompliance.
Bylaws 20.9.6.3, 20.9.7.1, and 20.9.7.2
The additional three bylaws that threaten a university’s ability to comply with Title
IX include Bylaw 20.9.6.3 (Minimum Contests and Participants Requirements for
Sports Sponsorship), Bylaw 20.9.7.1 (Scheduling Requirement—Sports Other Than
Football, Basketball, Cross Country, Men’s Swimming and Diving, Indoor and
Outdoor Track and Field, and Wrestling), and Bylaw 20.9.7.2 (Scheduling Require-
ment—Cross Country, Men’s Swimming and Diving, Indoor and Outdoor Track and
Field, and Wrestling). These are all discussed in one section as they are all referenced
under Bylaw 20.9, which focuses on Division I membership requirements, and both
scheduling requirements explicitly reference Bylaw 20.9.6.3. While these waivers are
still pending for 2020–2021, they all received a blanket waiver approval for 2019–
2020, and, as will be discussed later, some conferences are already moving forward,
assuming the waivers will pass.
Bylaw 20.9.6.3 outlines the minimum number of contests an intercollegiate
team must annually engage in against 4-year institutions as well as the minimum
number of participants required (Division I Manual, 2019). Table 2 outlines the
bylaw requirements. Bylaw 20.9.7.1 states that for all sports other than football,
basketball, cross-country, men’s swimming and diving, indoor and outdoor track
and field, and wrestling, 100% of the sports’ contests should be scheduled and
played against Division I opponents. Finally, Bylaw 20.9.7.2 states that in cross-
country, men’s swimming and diving, indoor and outdoor track and field, and
wrestling, at least 50% of the sports’ contests must be scheduled and played against
Division I opponents (Division I Manual, 2019).
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Table 2 Bylaw 20.9.6.3 Minimum Contests and Participants Requirements for Sports Sponsorship
Minimum Minimum Minimum Minimum
Team sport contests participants Individual sport contests participants
Baseball 27 Women’s bowling 8 5
Basketball 25 Cross-country 4 5
Women’s beach volleyball 8 Equestrian 6 12
Field hockey 11 Men’s fencing 9 5
Football 9 Women’s fencing 9 5
Men’s ice hockey 25 Golf 8 5
Women’s ice hockey 20 Men’s gymnastics 9 6
Lacrosse 10 Women’s gymnastics 9 5
Women’s rowing 6 23 Rifle 8 4
Women’s rugby 9 Skiing 5 5
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Soccer 11 Swimming and diving 6 11
Softball 27 Tennis 12 5
Volleyball 19 Track and field, indoor 4 14
Men’s water polo 15 Track and field, outdoor 4 14
Women’s water polo 10 Women’s triathlon 4 3
Wrestling 13 7
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The number of required contests held against Division I opponents and
scheduling are large concerns for Division I programs, with direct implications
for finances. As conferences have realigned and scheduled travel can stretch
thousands of miles, team transportation and equipment costs add up consider-
ably; and it is not just the Division I commissioners and programs that think a
waiver makes sense. A request for extending scheduling waivers beyond 2020
has also been sought by the Knight Commission on Intercollegiate Athletics. In
late April, they requested scheduling relief for nonrevenue sports other than
football and basketball. Their goal for more regional scheduling and less cross-
country or out-of-region scheduling is to reduce travel costs: “Waivers of these
provisions would provide significant flexibility for conducting regular-season
competition, which should result in substantial cost savings” (Schlabach, 2020,
para. 4).
To be fair, there is a reason that relaxing the minimum contests could be
reasonable. If various universities decide to cancel fall sports, then other schools
still planning to compete will be left with fewer viable options. For example, on
May 13 the California State University system decided to go almost fully online
with class for the fall semester. Hours after this announcement, the California
Collegiate Athletic Association suspended all competitions for the Fall 2020
season. Although this impacts its 12 members at the Division II level, it
demonstrates how schools can choose to pull out, and, if they do, a team can
be left with fewer competitors.
Relaxing contest and scheduling requirements, however, has the potential to
tip athletics firmly in the favor of men and leave women on the side. Where the
uncertainty and tension lie is in how athletic programs decide to handle the revenue
and nonrevenue sports. The Big Sky Conference provides an example to demon-
strate this concern. On May 11, the conference announced changes for the 2020–
2021 academic year. First, the volleyball regular season conference schedule was
reduced from 18 to 16 matches. Second, the women’s soccer conference tourna-
ment was eliminated in favor of automatically advancing the team with the most
points at the end of the season. This replaced the conference championship
tournament that included six teams. Third, volleyball, softball, and tennis had
their conference championship tournaments reduced in size. Volleyball went from
eight teams to only allowing four, softball went from a six-team to a four-team
tournament, and tennis went from a six-team tournament to four (Guernsey, 2020).
With the exception of men’s tennis, these changes all directly impact women’s
sports.
The results of these bylaw waivers pose a Title IX concern if women’s sports
are reduced in such a way that it impacts the availability, quality, kind of benefits,
kind of opportunities, and kind of treatment that women student athletes receive
versus men student athletes. To be clear, Title IX does not require that men’s and
women’s programs offer identical experiences, but they are required to provide
equivalent treatment, services, and benefits (“Requirements Under Title IX,” n.d.).
In the case of the Big Sky Conference, the women’s teams are clearly impacted,
whereas men’s teams are left relatively unscathed. While athletic directors surely
have financial arguments about maintaining revenue sports’ schedules, such as
those for football and men’s basketball, if they are left untouched, are women and
men receiving similar quality athletic experiences?
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Conclusion
The history of athletic departments’ noncompliance with Title IX is well docu-
mented. As NCAA programs embark into unchartered territory due to COVID-19,
oversight is mandatory to make sure that discrimination does not serve as a way to
keep athletic departments alive. This is not to say that commissioners and athletic
directors that ask for waivers or receive regulatory relaxation are motivated by
a desire to not comply with Title IX requirements. Furthermore, even if the NCAA
relaxes their bylaws, federal legislation will still be enforced and supersedes
organizational rules. However, without proper oversight, Division I athletic
programs could either directly or indirectly cut many programs to the bare bones
while allowing revenue teams to play full schedules with full numbers of
participants and offer more financial aid.
There are three key ways to help minimize problems with Title IX as the
bylaw waivers are enacted. First, the Department of Education should appoint a
person, or a task force, to oversee the bylaw changes. This person, or group,
could also create and disperse official statements for compliance officers to help
universities navigate the balance between upholding federal legislation while
making fiscal changes. Second, athletic departments and conferences should
ensure that if women’s schedules and conference competitions are cut, that men’s
are reduced as well. This does not have to be the same for all teams, but if items
for women’s teams are cut, then similar cuts should be done to men’s teams for
equivalency purposes. For example, while the Big Sky conference reduced
contest and scheduling requirements for several women’s teams in late May,
they reduced men’s and women’s basketball equally. Both teams will play a
16-game conference schedule, as opposed to the traditional 20 in-conference
games. Third, related to financial aid requirements, football programs should
reduce their scholarships from the 85 maximum they are allowed. An estimated
cost of an average year of attendance at a Division I FBS school, counting tuition,
room, board, and books/supplies, is $39,747 (Jennings, 2012). During a time of
extreme financial risk, reducing 5–7 scholarships on the football team could help
the financial aid imbalance between men’s and women’s teams and contribute
hundreds of thousands of dollars to nonrevenue teams with, arguably, little
overall impact.
As athletic departments move into a “new normal,” tough decisions will need
to be made. This is a significant risk and everyone, including commissioners,
coaches, athletic directors, and communication and sport scholars, must be aware.
Light must be shone on potential problems with NCAA bylaw waivers so
thousands of women athletes do not lose out and athletic programs do not further
threaten Title IX compliance.
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